Duthie v. Junker, 2011 ONCJ 298

Milton Registry No. 335/08 DATE: 2011·V·03 CITATION: Duthie v. Junker, 2011 ONCJ 298 ONTARIO COURT OF JUSTICE BETWEEN: LORI ANN DUTHIE, Applicant, — AND — KURT JUNKER, Respondent. Before Justice Roselyn Zisman Heard on 27 March 2011 and by written submissions Endorsement inscribed on 3 May 2011 ACCESS TO CHILD — Grounds — Best interests of child — Other unenumerated circumstances of child — Principle of maximumcontact — Despite consent order made year ago, parties had different

interpretations of father’s terms of access terms to his son (nowalmost 9 years old) that resulted ongoing conflict between parties — Mother’s evidence was that boy had behavioural problems onwhich basis she rationed out access — Mother argued that father (who resided on west coast of United States) simply did not understandboy’s day-to-day challenges and problems but then saw no need to keep him advised of those issues and problems when they arose andeven interfered with his ability to find out — Father’s telephone access tended, according to mother, to occur when boy was pre-occupiedin other activities — Mother resisted father’s request for greater access and wanted Christmas holidays to be shared and that summeraccess be limited to 2 weeks — Yet evidence showed that father and his wife seemed to be competent caregivers — Court agreed withfather’s concern that, if he were unable to gain more meaningful contact with boy over next several years, there was chance that father-and-son relationship might never develop to its full potential — Court pointed out that principle of maximum contact in Gordon v.Goertz, (SCC), [1996] 2 S.C.R. 27, applied to provincial law of access, even though this concept was not specificallyenumerated in Children’s Law Reform Act (Ont.) — Court ordered that father was to have all of Christmas holiday on alternating years; 5consecutive weeks every summer; and full weekend of American Thanksgiving — Court set out specific times for telephone accesstwice per week, with child to initiate one call per week with mother’s help — Mother was ordered to provide father with irrevocableconsent to consult with boy’s teachers, physicians, dentists, other health-care providers and any other institution or person dealing withboy’s welfare and to obtain oral and written reports relating to boy.

STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended],

section 7. Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended]. CASES CITED Gordon v. Goertz, [1996] 2 S.C.R. 27, 196 N.R. 321, 141 Sask. R. 241, [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321,19 R.F.L. (4th) 177, [1996] R.D.F. 209, , [1996] S.C.J. No. 52, 1996 Cars​well​Sask 199. MacGyver v. Richards, , 22 O.R. (3d) 481, 84 O.A.C. 349, 123 D.L.R. (4th) 562, 11 R.F.L. (4th) 432, [1995] O.J. No.770, 1995 Cars​well​Ont 90 (Ont. C.A.).

Applicant mother, Lori Ann Duthie ..................................................................... on her own behalf Respondent father, Kurt Junker .......................................................................... on his own behalf

JUSTICE R. ZISMAN ( endorsement ):— 1: BACKGROUND [ 1 ] This proceeding was commenced by the applicant, Lori Ann Duthie, on 20 August 2008, for sole custody of Dylan Graham Duthie, born on 15 June 2002, child support retroactive to his birth and for an order that the respondent Kurt Junker’s access be restricted and exercised in Ontario. [ 2 ] The parties are the parents of Dylan. They met in Toronto in 2001; they never married or lived together. [ 3 ] Mr. Junker works in a civilian capacity for the U.S. Department of Defense as well as the Air Force Reserves. He is a pilot.

He currently resides in Olympia in Washington State. Ms. Duthie works for Air Canada as a manager of labour relations and resides in Georgetown, Ontario. [ 4 ] The parties continued in a long-distance relationship for about four years. The parties travelled back and forth between their residences as well as to the father’s parents’ home in Minnesota. The father had contact and spent time with Dylan since his birth. Generally the mother was always present for the access visits. The frequency of the father’s access was disputed by the mother.

Despite the distance involved and the difficulty of co-coordinating travel arrangements, the parties for several years seemed to be able to make satisfactory arrangements. [ 5 ] When, however, the parties terminated their relationship in about December 2007, their ability to agree on the access arrangements broke down. There were disputes regarding who should be responsible for the cost of the access and the restrictive terms of access demanded by the mother, including the mother’s insistence that access occur in Ontario or in the presence of the mother or the paternal grandparents.

There were ongoing difficulties co-ordinating access and a lack of communication between the parties. [ 6 ] As a result of these disputes, in 2008 the father had no access and in 2009 an access visit was only arranged with the assistance of counsel. [ 7 ] As previously indicated, the mother began an application in August 2008 for sole custody, defined access to occur in Ontario and child support retroactive to the date of birth of Dylan.

Through inadvertence of his counsel, the father did not file an answer and, on 28 October 2008, the mother obtained an uncontested order for custody and prescribing access take place only in Ontario subject to the consent of the mother or further court order. No order for support was made. [ 8 ] On 19 December 2008, the father was successful in setting aside the portions of the order pertaining to custody and access and the case proceeded to several cases conferences. [ 9 ] Both parties retained counsel.

By minutes of settlement dated 30 April 2010, the parties resolved the issues of retroactive and ongoing child support and expenses under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended, some of the access issues and developed a parenting plan. The settlement provided for the father to pay child support of $1,111.00 per month and $389.00 per month for

section 7 expenses for the years 2010 to 2012 inclusive, based on his 2009 income of $130,706.00. By April 2013, the parties would exchange their tax returns for the preceding 3 years. However, the agreement specifically provided that the exchange of financial information was for the sole purpose of determining the father’s ongoing child support obligations and could not be used to substantiate a claim for retroactive child support or

section 7 expenses. It was the hope of the parties that, by agreeing to financial and access arrangements for the next 3 years, there would be a hiatus in the legal proceedings. [ 10 ] Both parties then became self-represented. At the case conference on 29 November 2010, Justice Theo Wolder, the case management judge, endorsed that the outstanding issues that needed to be resolved were the access arrangements for March 2011 to March 2014 and other access issues such as telephone access. He scheduled the matter for a one-day trial on these narrow issues.

The trial was to be based on the affidavits filed by the parties in the continuing record, submissions and any vive voce evidence that the court permitted. [ 11 ] At this case conference, the father requested financial disclosure with respect to the

section 7 expenses. However, Justice Wolder’s endorsement indicates that the parties entered into a final settlement on 30 April 2010 that provided that the financial arrangements, including the amount of guideline child support and

section 7 expenses would not be reviewable until 2013. Neither party was required to provide any disclosure. Justice Wolder endorsed that the father was therefore not entitled to any further financial disclosure for the years 2010 to 2012. 2: PRELIMINARY ISSUE [ 12 ] At the commencement of the trial, the father requested permission to file a further affidavit outlining his request that his support obligations in the order of 30 April 2010 be varied on the basis of a material change in his circumstances and based on an undue hardship claim.

He also requested financial disclosure from the mother and that she produce and bring to court Dylan’s Canadian and U.S. passports. He advised the court that he had attempted to serve the mother with his affidavit when he picked up Dylan for his access visit. The mother refused to accept the documents. [ 13 ] After hearing submission from both parties, I ruled that the father was not entitled to file his affidavit and further that the father was not entitled in these proceedings to attempt to vary the final support order of 30 April 2010 or to obtain any financial disclosure from the mother.

To permit him to do so would be prejudicial to the mother and contrary to the terms of that order and contrary to the endorsement of Justice Wolder regarding the

interpretation of the order of 30 April 2010.

[ 14 ] Further, there was no requirement of the mother to bring Dylan’s passports to court as the father’s purpose in viewing the passports was to support his request to vary his support obligation based on a hardship claim by proving that the Dylan had accompanied the mother on many trips. 3: ISSUES TO BE DETERMINED [ 15 ] Therefore, the issues to be determined at this trial were restricted to access arrangements from 2011 to 2014 and telephone access. [ 16 ] However, it became clear during the evidence that the parties had different

interpretations of some of the terms of the order of 30 April 2010 and that some of the provisions needed to be clarified and expanded in order to give effect to the terms of the current order and to attempt to avoid the ongoing conflict between the parties. Neither party objected to the jurisdiction of the court to make such adjustments. 4: POSITIONS OF THE PARTIES [ 17 ] It was the position of the father that he should have access on alternating March breaks, alternating Christmas holidays and for 6 consecutive weeks each summer.

He sought some changes in the telephone access to ensure that the calls occur as stipulated in the court order to him and the paternal grandparents. He also sought some changes including that Dylan be required to initiate one of the telephone calls and that there be make-up calls for any missed calls. [ 18 ] It was the position of the mother that Christmas holidays be shared each year, that the father exercise 2 weeks of summer access in 2011 and then 3 weeks in the following years. She disputed there were any serious problems with telephone access but was agreeable to the changes the father wished.

She was agreeable to alternating the March break. [ 19 ] The trial proceeded on the basis of the affidavits filed. Both parties testified and were cross-examined by the other party. The mother’s sister, Kimberley Floyd, also testified on behalf of the mother. 5: EVIDENCE REGARDING DYLAN [ 20 ] The mother testified that Dylan had “significant challenges in his life”. She described that, until recently, he had difficulty making friends and did not fit in at school. She testified that it is only this year that he was invited to classmates’ birthday parties. He has difficulty adapting to change.

She testified that he was currently on medication and was coping better. Dylan requires specific structure and routine and does well at home if the daily routines are adhered to. [ 21 ] She also testified that Dylan does well when he is stimulated. She felt that the father was not aware of Dylan’s difficulties as he did not have the deal with the day-to-day problems that mostly centred on school issues.

She was not surprised that the father did not see this side of Dylan as, when he is with the father, it is around holiday times and they are involved in many stimulating activities. [ 22 ] The mother testified that Dylan was significantly delayed in his reading skills and that he was enrolled in Oxford Learning for extra tutoring.

He no longer receives tutoring but he is required to read every night and there are other learning activities that he is required to do to ensure that he keeps up his reading skills. [ 23 ] The mother testified that Dylan is impulsive and can be aggressive and she has been called by the school regarding fights that he has with other children. She testified that, although he is in a regular classroom, he is segregated and sits in a corner by himself with cardboard barriers around him. He attends a special socialization session with other boys once a week.

He also has had issues at his after-school program at the YMCA with pushing and fighting with other children. [ 24 ] The mother testified that, in the winter, Dylan is enrolled in skating classes once a week, he attends swimming classes once a week in April and May and she has enrolled him in soccer once a week from May until September. He has attended various one- week camp programs through parks and recreation and, although there are different sports camps each week, there are the same instructors and the same children attend. Dylan also attended a horseback riding camp last year.

This year, she and Dylan had picked out the camps to which he wanted to go but she had not yet enrolled him. [ 25 ] In cross-examination, the father requested that the mother point to any reports that had been produced in the proceedings regarding Dylan’s challenges. The father also produced correspondence from his former counsel requesting such reports. The mother agreed that no reports had been provided. [ 26 ] In answer to questions from myself, the mother indicated that she did not have any medical reports and reports from either the school or the after-care program regarding Dylan.

However, the mother indicated that she could produce the school reports. As the father had already booked a return flight and could not attend court the following day, it was agreed that the mother would submit to the court and send a copy to the father of Dylan’s final report card for the school year 2009 to 2010 and his current report cards. Both parties were permitted to then file written submissions regarding the report cards. [ 27 ] Attached to the report cards the mother provided, was a behaviour plan for Dylan dated 10 February 2010 on the letterhead of the Halton District School Board.

The report is not signed. Under the heading “Health/Diagnostic Information”, it states “ADHD”. However, as the report is not signed and I have no information who provided this information, I do not put any weight on this diagnosis. The goals to the plan were to assist Dylan in his ability to interact appropriately with his peers and to increase his compliance

and follow through with routines. [ 28 ] A review of Dylan’s report cards suggests that his behaviour has improved, although he still needs to be directed to complete his work without distractions and continues to need to take more responsibility for his behaviour and to learn problem-solving strategies to resolve minor conflicts with his peers.

Academically, he is a capable student who is performing at or above grade level except for his reading skills that, although below grade level, are improving with practice. 6: EVIDENCE REGARDING COMMUNICATION DIFFICULTIES [ 29 ] Despite the carefully crafted and detailed order of 30 April 2010, the parties have continued to have ongoing disputes that have impacted their ability to communicate effectively and to exchange relevant information regarding Dylan.

This has led to minor issues being blown out of all proportion, to a lack of trust and most importantly to Dylan’s being continually drawn into the conflict between his parents. [ 30 ] The court order provided that the mother execute an authorization so that the father could obtain unredacted information from third parties about Dylan, including but not limited to Dylan’s welfare, education, extra-curricular activities, medical and health issues, regardless of which party paid for such services. [ 31 ] Although the mother provided such authorization, when the father attempted to obtain information from the Oxford Learning Centre including the cost of the tutoring, he was advised that Dylan was no longer having tutoring and that the mother had, subsequent to executing the authorization, sent a further letter to the centre to limit the father from obtaining any financial information. [ 32 ] It was the mother’s position that, as the father was not entitled to any further financial disclosure for the years 2010 to 2012, she was permitted to restrict his inquiry.

She felt that he was not interested in Dylan and only wished to obtain evidence about the cost of the tutoring to bolster his attempt to reduce his child support obligations. Although the mother was correct that the father was not entitled to further financial information, there was no evidence that the mother ever provided the father with a progress report from Oxford Learning Centre or that she even advised him that Dylan was no longer attending. She also did not advise him that she had limited his access to information.

Quite naturally, the father was upset and felt that he was being excluded from obtaining information to which he was entitled. [ 33 ] The father had requested that the school, in addition to contacting the mother, also contact him whenever Dylan had problems at school. The school was not prepared to do this but the father was able to reach an agreement that the principal would contact the father once a month to discuss Dylan.

The mother testified that she thought that there would be no point in the father’s being advised whenever Dylan had problems at school because, given his distance, there would not be anything he could do. When Dylan was recently involved in a fight at school, the mother did not advise the father; instead she told Dylan to tell his father about what happened.

Although the mother feels that the father does not understand the day-to-day challenges and problems that Dylan has, she does not see the need to keep him advised of these issues and problems when they arise. [ 34 ] Both parties repeat what Dylan tells them without any attempt to ascertain from the other parent whether there is any truth to the statements. For example, the mother testified that Dylan told her that this summer he would be going hunting with his father and that the father’s adopted son Colton, who is only 7 years old, already had a hunting gun.

Without ever asking the father whether this was true, the mother testified that she was therefore very concerned about Dylan’s safety and wanted a provision in the court order that the father not take Dylan hunting or allow him to possess a gun.

The father denied any of these statements as being true. [ 35 ] By way of another example, the father testified that Dylan told him that his mother told him to call him “Kurt,” that she refers to him as “Kurt” and not “Dad” and that he should call her fiancé, Scott, “Dad.” Again, the father never discussed this with the mother but assumed that this was true and used it as an example of the mother’s attempting to alienate Dylan from him. The mother denied that she referred to the father as “Kurt”.

She testified that Dylan was confused about what to call Scott, as his children are frequently at their home and obviously call him “Dad”. She testified that, when the father telephones their home, she would tell Dylan that “Dad Kurt” was on the phone. She told him he could call Scott, “Dad Scott”.

If the father had not jumped to conclusions and the mother had discussed Dylan’s confusion about what to call Scott and the father, the distrust and upset that resulted could have been avoided. [ 36 ] There was also an unfortunate incident over the Christmas holidays where the father testified that Dylan told him that his mother had said that he could go home whenever he wanted, that he was not his real father as they had never been married, that he never supported him when he was younger and that he remembered that he had hit the mother.

Again instead of communicating with the mother, the father felt that he needed to tell Dylan the “truth” about their relationship and the break-up and told Dylan that it was actually his mother that hit him and not the other way around. The father again accused the mother of telling these things to Dylan to interfere with his relationship and to try to alienate Dylan from him. The mother denied that she had told Dylan any of these things but maintained that he did have an independent recollection of the incident between them as he was four years old when it happened.

In an e-mail exchange between the parties, the mother stated that, as a result of this incident, Dylan needed counselling. The father demanded that he know the name of the counsellor and wanted to obtain information about the counselling. In her testimony, the mother clarified that the counselling occurred at the time of the actual incident and not recently.

But the mother had not clarified this earlier to the father nor did she ever provide him with any report from the counsellor. [ 37 ] There were other incidents of the father’s not being able to reach the mother to clarify the exact times of arrival, which resulted in an inappropriate exchange in front of Dylan. There was an incident where the father maintained that the mother did not notify him that she was leaving on a cruise and he would miss his telephone access.

The mother testified that, in accordance with the outstanding court order, she did not have to advise the father of her travel plans but that, in any event, she had done so. However, when she attempted to provide proof of the e-mail she sent to the father’s home on her Blackberry, the father confirmed that she had sent it to

the wrong e-mail address. [ 38 ] The current court order stipulated that Dylan is to travel with both his Canadian and U.S. passports. The mother testified that Dylan uses his Canadian passport but she packs his U.S. passport in his suitcase. This appeared to come as a surprise to the father who testified that the mother did not pack Dylan’s U.S. passport. On one occasion, the mother did confirm that she did not pack Dylan’s U.S. passport because she did not think that the father would need it. The mother did not explain why she felt that she did not have to comply with the court order.

There was no evidence that she communicated with the father about not providing Dylan’s passport. [ 39 ] In

summary, there appears to be a complete lack of communication between the parties and the need for more detailed guidelines for the exchange of information in order to avoid misunderstandings and involving Dylan in the conflicts between the parties. 7: EVIDENCE REGARDING SUMMER ACCESS [ 40 ] The mother agreed that she trusted the father and his spouse and that they had the ability to care for Dylan but felt that he needed consistent access that should only be increased slowly and gradually.

She felt it was not in Dylan’s best interests to be removed from his environment, his friends and activities for almost all of the summer. [ 41 ] It was the mother’s view that it would be equitable and in Dylan’s best interests to be able to have two weeks of vacation with each parent and that, for the rest of the summer, he should be involved in various camp activities with his friends and in his own environment. Although she denied that she had made any definitive arrangements for summer camp, she had discussed some possibilities with Dylan.

The mother’s sister testified that she had spoken to Dylan and that he only wanted to spend two weeks with his father this summer. [ 42 ] The mother was adamant that, during the time that Dylan spent with his father, he not be enrolled in any day-camp program as Dylan had difficulty adjusting to new environments and difficulty with his peers. But she was agreeable that that he could attend an evening activity such as soccer. At one point in her testimony, she stated that her

interpretation of the order of 12 April 2010 was that the father needed to be present at all times when Dylan was in his care but then relented that the father’s spouse could care for Dylan. [ 43 ] The father testified that he had 3 weeks of holiday and it was his intention to spend as much of that time with Dylan as possible. He would also be available in the evenings and weekends. There was a babysitter at home, so at the present time Dylan would not be enrolled in any day-camp programs.

However, he did not witness any problems that Dylan had adjusting to spending time with him and his family or with children in his neighbourhood. The father testified that he felt he had only a few years to build a core relationship with Dylan as he recognized that, in a few years, Dylan would be a teenager and would not want to spend so much time with him during the summer. [ 44 ] The mother testified that, in lieu of the father’s request for six weeks during summer, she was prepared to arrange, at her expenses, for Dylan to spend the American Thanksgiving with the father and his family.

In response to the father’s concerns about Dylan’s being removed from school, the mother testified that she felt that he could miss a few days of school. 8: EVIDENCE REGARDING CHRISTMAS ACCESS [ 45 ] The current arrangement requires the splitting of the Christmas holidays, which the mother wishes to continue whereas the father wishes to alternate each year.

The father testified that he could not afford the cost of the airfare at this peak time of travel each year and he felt that the time change was difficult for Dylan. [ 46 ] He also gave the example of this Christmas, when Dylan had to be rushed out of their home on 26 December for a flight at 6:00 a.m. He estimates that the cost of Christmas access will be about $1,500.00. Splitting the holidays did not permit sufficient time for Dylan to spend time with his paternal extended family. [ 47 ] The mother’s rationale for splitting the Christmas holidays is that it allows Dylan to spend time with both of his families.

She did not offer to pay for any of the cost of the airfare. 9: EVIDENCE REGARDING TELEPHONE ACCESS [ 48 ] The current order requires the father to initiate telephone calls every Wednesday at 8:15 p.m. and every Sunday at 8:00 p.m. At least 15 minutes should be made available for such calls and interruptions should be avoided. If the father is unable to reach Dylan, then the mother is to ensure that Dylan calls his father back within 30 minutes. There is also a provision that Dylan can telephone or e-mail whenever he wishes.

There is also a provision for the paternal grandparents to have telephone access monthly. [ 49 ] The father testified about several incidents when he was denied telephone access. The mother provided plausible explanations for these incidents. She also testified that the paternal grandparents were having telephone access contrary to the father’s evidence. [ 50 ] More importantly, the father expressed concerns that Dylan was not encouraged to exercise telephone access and that he was not aware of the

schedule for such telephone calls. He felt that Dylan was always in the middle of doing something when he called or had something that he needed to do. In his view, if Dylan was required to initiate at least one of the calls, he would be more engaged and take more interest in the calls. He was also trying to engage Dylan in the telephone calls by hoping to play the game Battleship with him. The mother had no knowledge of this.

[51] The mother denied that she interfered with the telephone calls. She testified that Dylan had an evening routine thatincluded a shower and reading before bed. She confirmed that sometimes when the father called, Dylan was involved with otheractivities and was not interested in talking on the telephone. Both she and her sister testified that, when Dylan was away from hismother, he would only speak to her for a few minutes on the telephone.

Neither the mother nor her sister seemed to appreciate thesignificance of the father’s need to communicate with Dylan on the telephone because of their long-distance relationship. There was noevidence that Dylan had ever initiated a call or e-mailed his father. [52] When I questioned the mother about trying to make the telephone calls more interesting for Dylan by using videotelephone such as Skype, she testified that Dylan was only learning to use the computer.

But a review of his report cards suggests that hehas sufficient computer skills that using the computer for calls would not be problematic for him. 10: THE LAW [53] Although the issues in this trial were narrow, they were important to the parties. Any order that is made regarding accessand clarifying how the parties communicate and make arrangements for Dylan must be focused on Dylan’s best interests and not on theinterests, rights or needs of the parents. [54] As has been recognized in many cases, the concept of “best interests” is an imprecise, vague and difficult criterion todefine and apply.

The difficulty of applying the “best interests of the child” test was discussed in MacGyver v. Richards, , 22 O.R. (3d) 481, 84 O.A.C. 349, 123 D.L.R. (4th) 562, 11 R.F.L. (4th) 432, [1995] O.J. No. 770, 1995 Cars​well​Ont 90 (Ont.C.A.), by Appeal Justice Rosalie S. Abella, as she then was, who stated as paragraph [27]: [27] Clearly, there is an inherent indeterminacy and elasticity to the “best interests” test that makesit more useful as legal aspiration than as legal analysis.

It can be no more than an informed opinionmade at a moment in the life of a child about what seems likely to prove to be in that child’s bestinterests. Deciding what is in a child’s best interests means deciding what, objectively, appears mostlikely in the circumstances to be conducive to the kind of environment in which a particular child hasthe best opportunity for receiving the needed care and attention. Because there are stages to childhood,what is in a child’s best interests may vary from child to child, from year to year and possibly frommonth to month.

This unavoidable fluidity makes it important to attempt to minimize the prospects forstress and instability. [55] Justice Abella’s comments were considered by Justice Beverley McLachlin in Gordon v. Goertz, [1996] 2 S.C.R. 27, 196N.R. 321, 141 Sask. R. 241, [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321, 19 R.F.L. (4th) 177, [1996] R.D.F. 209, , [1996] S.C.J. No. 52, 1996 Cars​well​Sask 199, at paragraph [20] [20] The best interests of the child test has been characterized as “indeterminate” and “more usefulas legal aspiration than as legal analysis”: per Abella J.A. in MacGyver v.

Richards (1995), (ON CA), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as aneloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody andaccess is the welfare of the child whose future is at stake. The multitude of factors that may impinge onthe child's best interest make a measure of indeterminacy inevitable. A more precise test would risksacrificing the child's best interests to expediency and certainty.

Moreover, Parliament has offeredassistance by providing two specific directions — one relating to the conduct of the parents, the other tothe ideal of maximizing beneficial contact between the child and both parents. [56] The principle of maximum contact must be carefully considered in the context of this case. The principle of maximumcontact applies to provincial cases, even though this concept is not specifically articulated in the Children’s Law Reform Act, R.S.O.1990, c.

C-12, as amended. [57] It is well accepted that it is in a child’s best interests to have a loving and meaningful relationship with both parents. Achild should be given the opportunity to know the non-custodial parent and to be a part of that parent’s life and to have as much contactas is consistent with his best interests. [58] I have applied these principles to the issues that I must determine in this case. 11: ANALYSIS [59] Both parents clearly love Dylan and are deeply and sincerely concerned about his well being.

However, there are manyincidents where they have been unable to put their distrust of each other aside for the sake of Dylan. [60] The father has clearly shown an interest and desire, despite the distance, to have a close and meaningful role in Dylan’slife. By maintaining consistent telephone contact, he was hoping to be involved in the day-to-day issues in Dylan’s life.

By arranging tohave contact with Dylan’s school on a monthly basis, he was attempting to be apprised and aware of any school-related issues. [61] Although the mother has not interfered with the father’s ability to obtain information from the school, she does not see theneed to advise the father of any day-to-day problems with Dylan’s behaviour or other problems that he may encounter at school. Butthen, she is critical of the father for not understanding Dylan’s challenges. It was concerning that, instead of her advising the father of afight Dylan had at school, she told Dylan to tell his father about it.

It certainly would have been more appropriate for her to advise thefather of what happened and then perhaps he could have discussed the issue with Dylan.

[ 62 ] Although I accept the mother’s evidence that she has not purposefully interfered with Dylan’s telephone calls with the father, I find that she has not actively supported the need for or appreciated the significance of Dylan’s telephone contact with the father. For example, if Dylan needs to read each night, she could have advised the father of the book he was reading and encouraged Dylan to read to his father; she could have arranged for Dylan to play a game with his father during his telephone calls or used technology such as Skype to make the calls more interactive and interesting.

The mother has an obligation to facilitate the calls by ensuring that Dylan is aware of the day and timing of the calls, that he has completed his evening routines and that he is not involved in other activities. [ 63 ] I agree with the father that Dylan should be required to take the initiative, with the mother’s assistance, in placing a telephone call once a week to the father and that the father be responsible for initiating the other weekly call. This will ensure that Dylan is not involved in other activities or otherwise distracted.

I also intend to make an order that both parties obtain compatible computers so that video telephone calls can be arranged if the father wishes to try this type of communication. [ 64 ] By requiring the mother to advise the father regularly about Dylan’s progress, problems that he may be having or other issues of significance, then perhaps these calls can be more meaningful and, in any event, they will ensure that the father is more attuned to and aware of Dylan’s day-to-day life.

I do not believe that it is onerous for the mother to be required to e-mail the father twice a month regarding Dylan or for the father to do the same. Such communication may help both parties and especially the father to feel more a part of Dylan’s day-to-day life.

It is important that these e-mails be restricted to factual information about Dylan, both positive and negative, and that the parties not resort to being accusatory of each other or to dredge up historical issues. [ 65 ] The mother should also be required to provide the father with copies of any reports that she receives about Dylan or advice the father of any oral reports that she receives about which the father either does not know or that he cannot obtain through the third party.

The lack of providing the father with any medical or counselling reports about Dylan or a report about his progress in tutoring with Oxford Learning Centre are examples of the mother’s failure to ensure that the father is fully advised about issues of concern regarding Dylan. Although the current court order provides for the mother to sign authorizations for the release of information to the father, it did not prevent the mother from then revoking such authorization, which she did with the Oxford Learning Centre.

It also does not permit the father to obtain information if he does not know the contact information for the health care provider, or the education-related professional or the contact person for any recreational activities in which Dylan may be involved. The mother will therefore be required to provide the father with the current names of any such professional involved with Dylan and keep him apprised of any new professionals.

Further, the mother should not be permitted to revoke or limit any such authorization. [ 66 ] A requirement for a mechanism for information being convened between the parties may in the future prevent some of the misunderstandings between the parties and avoid Dylan’s being the conveyor of information and thereby placed in the middle of the conflict between his parents. [ 67 ] On the basis of the evidence, I find that the father and his spouse are capable parents and should be trusted to care for Dylan while he is in their care.

I have no doubt that the father would use good judgment and abide by Dylan’s wishes in organizing activities and programs for Dylan while he is in the father’s care. Although the mother is concerned about Dylan’s ability to adjust and handle new situations, it appears that Dylan is gradually learning to cope with new situations and is learning how to interact more co- operatively with his peers.

There is no basis for the mother to restrict the father from enrolling Dylan in programs or activities in which he may express an interest and that would include day-camp programs in the future. [ 68 ] With respect to the Christmas access, I believe that the father’s plan of alternate years would be less stressful for Dylan and allows him to relax and enjoy the holiday with each parent and his or her extended family members.

The parent with whom Dylan does not spend Christmas in one year can communicate with him on Christmas Eve or Christmas Day and he can still receive his presents either by them being sent to him in time for Christmas or at a later date. [ 69 ] With respect to the summer holidays, the mother has concerns about Dylan’s problems adjusting to a change in routines and wants him to participate in summer activities such as camps with his friends and to be in his own environment.

However, the mother testified that most of Dylan’s problems arose in school and she was not surprised that the father did not have problems with Dylan over the holidays as he is constantly being stimulated and involved in many activities. There are no allegations in either the mother’s affidavit material or in her oral evidence that the father and his spouse were unable to care for Dylan for an extended period of time. [ 70 ] It was the mother’s evidence that the father did not have a good grasp of the day-to-day issues with which she has to deal because of Dylan’s behaviour.

But unless that father spends some extended time with Dylan, he will not have the opportunity to experience and deal with the challenges with which the mother has to deal because of Dylan’s behaviour. The summer vacation is the only available time for the father to spend any extended time with Dylan so that he can experience first-hand some of the challenges with which the mother has testified that she must deal throughout the year. Spending extended time with Dylan will enable the father to become more attuned to Dylan’s needs.

It is of benefit to Dylan for his father to have an opportunity to parent him and not just to be the parent with whom he can have fun. Spending extended time together will also foster and develop the relationship between Dylan and his father. [ 71 ] The father has not encountered any problems with Dylan adjusting to spending time with him or being in his environment. The father expresses that Dylan is happy and excited to spend extended time with him over the summer and feels that Dylan says different things to his mother.

It may be that, when Dylan spends more time with the father, the father will experience some of the same challenges and problems in dealing with Dylan’s behaviour that the mother experiences thorough out the year; but there is nothing to suggest that the father cannot handle any situations or issues that may arise over an extended visit. [ 72 ] Although it is important for Dylan to spend time with his friends and be in his environment, the mother needs to appreciate that he can do this thorough out the school year and that the only opportunity for Dylan to spend any extended time with his father and his paternal family is during the summer months.

If the father is unable to solidify his relationship with Dylan over the next several years, there is a chance that that relationship will never develop to its full potential. [ 73 ] Generally, the summer vacation, from the day that school is over until the return to school, is about nine weeks. It is my

view that it is in Dylan’s best interests to spend five weeks with his father each summer. That will still provide about two weeks for him to be enrolled in day-camp programs with his friends and two weeks for the mother to enjoy a family holiday if she wishes. [ 74 ] In addition, based on the mother’s proposal, Dylan will spend the American Thanksgiving weekend with his father. In 2011, Dylan will spend from 23 to 27 November with his father. The mother will be responsible for all costs.

If the parties cannot agree about the arrangements for the flight (to either Vancouver, Seattle, Washington or to the paternal grandparents’ home in Minnesota), the father’s choice will prevail. In subsequent years, the exact dates may have to be adjusted, but Dylan shall be with the father from at least the day before Thanksgiving and for the weekend, either before or after 24 November, the actual day of Thanksgiving.

If for any reason Dylan does not spend Thanksgiving with his father in any year, he shall spend an extra week of summer holidays with the father. [ 75 ] The parties were able to resolve many issues in the consent order of 30 April 2010. I am hopeful that, with this litigation resolving the remaining issues, the parties can put their differences aside, communicate more positively and foster and respect their respective parenting roles in Dylan’s life. 12: ORDER AS FOLLOWS [ 76 ] The order of 30 April 2010 shall be on full force and effect except as varied, modified or expanded upon by this order:

(1) Dylan Graham Duthie, born on 15 June 2002 shall spend time with the respondent, Kurt Junker, as follows: (

a) alternate March break for one week from Saturday to Saturday commencing in March 2012; (

b) alternating Christmas holidays for two weeks commencing on Saturday, 22 December 2012 to Saturday, 5 January 2013; in alternating years, the dates may change slightly to accommodate the school schedule; (

c) every summer for five consecutive weeks, for 2011 from Saturday, 9 July until Saturday, 13 August 2011; for subsequent years the respondent shall notify the applicant in writing of the dates that he wishes no later than 1 April of each year; (

d) every American Thanksgiving; for 2011, from 23 to 27 November, with his father. The applicant will be responsible for all costs. If the parties cannot agree about the arrangements for the flight (to either Vancouver, Seattle, Washington or to the paternal grandparents’ home in Minnesota), the respondent’s choice will prevail. The respondent shall advise the applicant in writing of his choice of destinations for the flight.

In subsequent years, the exact dates may have to be adjusted, but Dylan shall be with the respondent from at least the day before Thanksgiving and for the entire weekend, either before or after 24 November, the actual day of Thanksgiving. If for any reason Dylan does not spend Thanksgiving with the respondent in any year, he shall spend an extra week of summer holidays with the respondent; (

e) Dylan shall at all times, when exercising access with the respondent, travel with both his Canadian and American passports. If he is using his Canadian passport for travel purposes, his American passport shall be packed in his suitcase; (

f) the respondent shall be permitted to enrol Dylan in any activity or program (including a summer camp) in accordance with Dylan’s wishes. The respondent shall advise the applicant in writing of any such activity or program in which he enrols Dylan. The respondent shall provide the applicant with any written information or reports or, if written materials are not available, provide oral information about the program or activity; and (

g) the applicant will advise the respondent if there is any reading or other learning activities that Dylan is required to do during the time that he spends with the respondent.

(2) Telephone calls between Dylan and the respondent shall occur as follows: (

a) Every Wednesday at 7:45 p.m. Eastern Standard Time (EST) to be initiated by the respondent. At least 15 minutes should be made available for such calls. (

b) Every Sunday between 7:00 and 7:30 p.m. to be initiated by Dylan with the assistance of the applicant. At least 30 minutes shall be made available for such calls. (

c) For all of the telephone calls, the applicant shall ensure that Dylan is made aware of the time for the calls, that he is not involved in any activities or games, that his bedtime routines are complete and that the calls are not interrupted. (

d) All calls will be initiated to the home telephone of the other parent and then only, as an alternative use, cell phone numbers are to be used. (

e) If desired by the respondent, the Sunday telephone calls can be arranged to be by video telephone such as Skype, a webcam or any such similar device. The respondent shall advise the applicant of the software that he is using and, within 30 days, the applicant shall arrange for compatible software, at her cost. The applicant will assist Dylan in the use of such software and facilitate such calls. (

f) If the respondent is unable to reach Dylan on Wednesday or if Dylan does not call the respondent on Sunday, the applicant shall ensure that Dylan telephones the next day at 7:30 p.m. unless another time is co-ordinated. (

g) The paternal grandparents shall have telephone access once a month on the first Sunday of each month, in lieu of the respondent’s call, between 7:00 and 7:30 p.m. EST and on the same terms as the respondent’s Sunday calls. (

h) The applicant shall advise the respondent in writing of a telephone number, location and time frame where Dylan can be reached when she is travelling with Dylan or the contact information where Dylan can be reached if the applicant is travelling without Dylan to ensure that the respondent’s telephone calls continue to occur, if possible, in accordance with the regular

schedule or, if this is not possible, alternate arrangements shall be made for the missed calls.

(3) The applicant shall advise the respondent in writing if she is travelling outside of Canada and provide her contact information to the respondent.

(4) The parties shall communicate with each other about issues concerning Dylan only by e-mail. Dylan will not read or otherwise have access to the e-mails. The e-mails shall be brief, civil and appropriate and deal only with child-related issues. The parties will refrain from personal comments and shall restrict their e-mail communication to once every two weeks unless there are circumstances that require further and urgent e-mail communication. The parties will promptly respond to the other parties’ e-mail. All e-mails shall be preserved and not forwarded to any third party.

(5) Neither party will discuss with Dylan or with another party in the presence of Dylan, past, present or future legal proceedings or issues between the parties related to present, past or future legal proceedings, including any outstanding financial issues or regarding any conflicts between the parties relating to parenting issues.

(6) If one party finds that Dylan has said something about the other parent to be of significant concern, that party shall first ask the other parent, by e-mail, what actually happened. If a complaint is made by Dylan to one parent about the other parent, Dylan shall be encouraged to talk directly to the parent about whom he is complaining.

(7) The applicant will provide the respondent with a current list and contact information for any person involved in Dylan’s general well being, including, but not limited to, any caregiver, educational consultant or tutor, coach or other recreational personnel, physician, dentist or other health care provider. The applicant shall advise the respondent of any change or any new person involved in the general well being of Dylan.

The applicant shall provide the respondent with an irrevocable consent to consult with Dylan’s teachers, physicians, dentists, other health care providers and any other institution or person dealing with Dylan’s general well being and to obtain oral and written reports relating to Dylan. The applicant shall not attempt in any manner to restrict the respondent’s access to obtaining all information pertaining to Dylan.

(8) If either party is seeking costs, brief written costs submissions with a bill of costs is be submitted within 14 days.